COGCC drops lawsuit against Longmont, says it will draft a contract that says it won't sue in the future

City officials initially disappointed; had requested a complete dismissal

By Tony Kindelspire

Longmont Times-Call

Posted:
08/07/2014 10:30:30 AM MDT

Updated:
08/07/2014 04:33:13 PM MDT

Longmont Mayor Pro-tem Brian Bagley at Monday's press conference with Gov. John Hickenlooper, at which the governor said he would request the COGCC drop its lawsuit against the city. It did so Thursday, and said it will draft a "covenant not to sue" the city in the future. (Jeremy Papasso / Daily Camera)

The Colorado Oil & Gas Conservation Commission on Thursday unanimously agreed to drop its lawsuit against the city of Longmont and draft a "covenant not to sue" the city in the future.

The COGCC board voted to dismiss the lawsuit "without prejudice," a legal term meaning that at any point in the future, it could revive the lawsuit. Longmont city officials had been pushing for the dismissal "with prejudice," meaning it could never be revived.

Immediately after the meeting the Longmont city officials that traveled to the COGCC meeting to speak to the board expressed their disappointment with the vote, feeling that it left open the possibility of the lawsuit being revived.

"Initally that was our reaction, but as we were driving home and reflecting on it, we thought, this could still be a win-win for Longmont," Longmont Mayor Dennis Coombs said later Thursday afternoon.

The city has filed a counter-suit against the COGCC, asserting that as a home rule city it has the right to protect its residents by crafting regulations on oil and gas development that are stricter than the state's. Asked if this meant the city would drop its counter-suit — so far Longmont has spent $164,000 on it, Coombs told the COGCC's board — he said he hoped that will be the case.

"If the covenant is properly done and gives us the same result (as a dismissal with prejudice), then I would assume we will drop our counter-suit," Coombs said. "But the devil is always in the details."

The COGCC sued Longmont in July 2012, the same month the city council passed its regulations, which it still contends are valid.

A drilling rig is seen at a well site on July 24 south of Union Reservoir near Longmont. (Matthew Jonas / Longmont Times-Call)

"The Longmont regulations prevent heavy industry, including oil and gas, from encroaching into our neighborhoods, in order to protect our homes and schools," Mayor Pro-tem Brian Bagley said in a statement issued by the city Thursday afternoon. "With the current uncertainty of the legal status of Longmont's fracking ban, the preservation of our oil and gas regulations is crucial to the health, safety and welfare of our citizens."

In a separate lawsuit, the Colorado Oil and Gas Association is also suing Longmont over a voter-enacted ban on hydraulic fracturing, or fracking, within the city limits. A judge has voided that ban but has stayed her ruling pending appeal.

The COGCC held a special meeting Thursday solely to address the Longmont lawsuit. Gov. John Hickenlooper on Monday requested the COGCC dismiss its suit in what his office called a "good faith effort to help bring parties together."

The issue of local control versus industry's access to mineral rights it owns has been a contentious one in Colorado for many years, but Longmont has found itself at ground zero — first with its tougher regulations and then by the voter-enacted ban on fracking, which passed in November 2012.

Several other cities have either enacted bans or are considering doing so, and they're also finding themselves facing legal challenges.

On Monday, Gov. John Hickenlooper announced what he touted as a compromise between pro-environmental groups who want stricter regulations on the oil and gas industry and pro-industry groups. That compromise included the withdrawal of four ballot initiatives, two backed by environmentalists and two by industry, from this November's election. The compromise also includes the creation of an 18-member task force to study the state's oil and gas regulations.

At his press conference Hickenlooper also said he would ask the COGCC to dismiss its suit against Longmont.

Coombs, Bagley, Councilmembers Gabe Santos and Jeff Moore, along with Longmont city attorney Eugene Mei, made the trek to Denver Thursday to speak to the COGCC board.

"The fracking ban (by voters), I believe, came about because of the state's decision to sue Longmont."

About 10 people were in the audience but no one spoke except the Longmont representatives, all of them pushing for a "with prejudice" dismissal.

Santos told the board that he viewed the governor's statement Monday as unambiguous. He believed Hickenlooper was requesting a complete dismissal of the lawsuit.

"Where I come from, when a gentleman or a person gives their word and a handshake, they then try to keep their word," Santos said.

In discussion after a 30-minute executive session, the COGCC board — some in attendance in person and some via telephone — said they appreciated the effort by Longmont's leaders to come down and speak, but it was evident that they had reservations about the request to dismiss with prejudice.

Mike King, the state Department of Natural Resources executive director and a COGCC board member, pointed out that in his statement Monday, the governor had not specified that the COGCC dismiss its lawsuit with or without prejudice.

And, King said, he was concerned that if the commission dropped its lawsuit with prejudice other cities in Colorado could see that as an invitation to begin crafting their own regulations. He felt like dismissing the Longmont case with prejudice would create "legal ambiguity" over whether the COGCC could sue another municipality in the future.

Several commissioners expressed agreement with King's position. Commissioner James Hawkins said dismissal with prejudice would only provide incentive for other cities to "copycat" Longmont.

"We need to be very careful, very deliberate about the message we send to the rest of the cities in Colorado," he said.

What was not settled out of Thursday's decision is what's to become of the other parties that have weighed in on either side in the lawsuit. The Colorado Oil and Gas Association joined the COGCC's suit in November 2012 and the Sierra Club and Earthworks formally joined the Longmont side in early 2013.

"In the end, the court still decides the final fate of the lawsuit," the city said in its statement.

MacIntyre says the completed project will be best in Pac-12There were bulldozers, hard hats, mud, concrete trucks, blueprints, mud, cranes, lots of noise and, uh, mud, during the last recruiting cycle when Colorado football coach Mike MacIntyre brought recruits to campus. Full Story

MacIntyre says the completed project will be best in Pac-12There were bulldozers, hard hats, mud, concrete trucks, blueprints, mud, cranes, lots of noise and, uh, mud, during the last recruiting cycle when Colorado football coach Mike MacIntyre brought recruits to campus. Full Story

Most people don't play guitar like Grayson Erhard does. That's because most people can't play guitar like he does. The guitarist for Fort Collins' Aspen Hourglass often uses a difficult two-hands-on-the-fretboard technique that Eddie Van Halen first popularized but which players such as Erhard have developed beyond pop-rock vulgarity.
Full Story